[Federal Register Volume 89, Number 203 (Monday, October 21, 2024)]
[Rules and Regulations]
[Pages 84065-84076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24154]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 203 / Monday, October 21, 2024 /
Rules and Regulations
[[Page 84065]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2017-BT-STD-0014]
RIN 1904-AF58
Energy Conservation Program: Energy Conservation Standards for
Residential Clothes Washers
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Direct final rule; confirmation of effective and compliance
dates; technical correction.
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SUMMARY: The U.S. Department of Energy (``DOE'') published a direct
final rule to establish amended energy conservation standards for
residential clothes washers in the Federal Register on March 15, 2024.
DOE has determined that the comments received in response to the direct
final rule do not provide a reasonable basis for withdrawing the direct
final rule. Therefore, DOE provides this document confirming the
effective and compliance dates of those standards. This document also
clarifies the introductory notes to the appendices for the residential
clothes washer test procedure to conform with the amended standards
promulgated by direct final rule published on March 15, 2024.
DATES: The technical correction in this document is effective October
21, 2024. The effective date of July 15, 2024, for the direct final
rule published on March 15, 2024 (89 FR 19026) is confirmed. Compliance
with the standards established in the direct final rule will be
required on March 1, 2028.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, public meeting attendee lists and transcripts,
comments, and other supporting documents/materials, is available for
review at www.regulations.gov. All documents in the docket are listed
in the www.regulations.gov index. However, not all documents listed in
the index may be publicly available, such as information that is exempt
from public disclosure.
The docket web page can be found at www.regulations.gov/docket/EERE-2017-BT-STD-0014. The docket web page contains instructions on how
to access all documents, including public comments, in the docket.
For further information on how to submit a comment or review other
public comments and the docket, contact the Appliance and Equipment
Standards Program staff at (202) 287-1445 or by email:
[email protected].
FOR FURTHER INFORMATION CONTACT:
Dr. Carl Shapiro, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Office, EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone:
(202) 287-5649. Email: [email protected].
Ms. Kiana Daw, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-4798. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority
II. Residential Clothes Washers Direct Final Rule
A. Background
III. Comments on the Direct Final Rule
A. General Comments
B. Authority To Regulate Water Use
C. Anti-Backsliding
D. Economic Justification
E. Unavailability of Performance Characteristics
F. Stakeholder Representation
G. Responses to Previous Stakeholder Comments
H. Formal Rulemaking
I. Conforming Updates To Test Procedure Introductory Notes
IV. Impact of Any Lessening of Competition
V. Conclusion
I. Authority
The Energy Policy and Conservation Act, Public Law 94-163, as
amended (``EPCA''),\1\ authorizes DOE to issue a direct final rule
establishing an energy conservation standard for a product on receipt
of a statement submitted jointly by interested persons that are fairly
representative of relevant points of view (including representatives of
manufacturers of covered products, States, and efficiency advocates),
as determined by the Secretary of Energy (``Secretary''), that contains
recommendations with respect to an energy or water conservation
standard that are in accordance with the provisions of 42 U.S.C.
6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. (42 U.S.C.
6295(p)(4))
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\1\ All references to EPCA in this document refer to the statute
as amended through the Energy Act of 2020, Public Law 116-260 (Dec.
27, 2020), which reflect the last statutory amendments that impact
Parts A and A-1 of EPCA.
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The direct final rule must be published simultaneously with a
notice of proposed rulemaking (``NOPR'') that proposes an energy or
water conservation standard that is identical to the standard
established in the direct final rule, and DOE must provide a public
comment period of at least 110 days on this proposal. (42 U.S.C.
6295(p)(4)(A)-(B)) Not later than 120 days after issuance of the direct
final rule, DOE shall withdraw the direct final rule if: (1) DOE
receives one or more adverse public comments relating to the direct
final rule or any alternative joint recommendation; and (2) based on
the rulemaking record relating to the direct final rule, DOE determines
that such adverse public comments or alternative joint recommendation
may provide a reasonable basis for withdrawing the direct final rule.
(42 U.S.C. 6295(p)(4)(C)) If DOE makes such a determination, DOE must
proceed with the NOPR published simultaneously with the direct final
rule and publish in the Federal Register the reasons why the direct
final rule was withdrawn. (Id.)
After review of comments received, DOE has determined that it did
receive adverse comments on the direct final rule. However, based on
the rulemaking record, the comments did not provide a reasonable basis
for withdrawing the direct final rule under the provisions in 42 U.S.C.
6295(p)(4)(C). As such, DOE did not withdraw this direct final rule and
the direct final rule remains effective. Although not required under
EPCA, where DOE does not withdraw a direct final rule, DOE typically
publishes a summary of the comments
[[Page 84066]]
received during the 110-day comment period and its responses to those
comments. This document contains such a summary, as well as DOE's
responses to the comments.
II. Residential Clothes Washers Direct Final Rule
A. Background
In a direct final rule published on May 31, 2012 (``May 2012 Direct
Final Rule''), DOE prescribed the current energy conservation standards
for residential clothes washers (``RCWs'') manufactured on or after
January 1, 2018. 77 FR 32308.\2\ These standards are set forth in DOE's
regulations at 10 CFR 430.32(g)(1). The current standards are defined
in terms of a minimum allowable integrated modified energy factor
(``IMEF''), measured in cubic feet per kilowatt-hour per cycle
(``ft\3\/kWh/cycle''), and maximum allowable integrated water factor
(``IWF''), measured in gallons per cycle per cubic foot (``gal/cycle/
ft\3\''), as measured according to the test procedure at 10 CFR part
430, subpart B, appendix J2 (``appendix J2'').
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\2\ DOE published a confirmation of effective date and
compliance date for the direct final rule on October 1, 2012. 77 FR
59719.
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In a final rule published on June 1, 2022 (``June 2022 TP Final
Rule''), DOE finalized a new test procedure at 10 CFR part 430, subpart
B, appendix J (``appendix J''), which defines new energy efficiency
metrics: an energy efficiency ratio (``EER'') and a water efficiency
ratio (``WER'').\3\ 87 FR 33316, 33319. For both EER and WER, a higher
value indicates more efficient performance.
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\3\ EER is defined as the quotient of the weighted-average load
size divided by the total clothes washer energy consumption per
cycle, with such energy consumption expressed as the sum of (1) the
machine electrical energy consumption, (2) the hot water energy
consumption, (3) the energy required for removal of the remaining
moisture in the wash load, and (4) the combined low-power mode
energy consumption. 10 CFR part 430 subpart B, appendix J section 1.
WER is defined as the quotient of the weighted-average load size
divided by the total weighted per-cycle water consumption for all
wash cycles in gallons. Id.
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On March 3, 2023, DOE published a NOPR (``March 2023 NOPR'')
proposing to establish amended standards for RCWs, defined in terms of
the EER and WER metrics as measured according to appendix J. 88 FR
13520.
On September 25, 2023, DOE received a joint statement (``Joint
Agreement'') recommending standards for RCWs that was submitted by
groups representing manufacturers, energy and environmental advocates,
consumer groups, and a utility.\4\ In addition to the recommended
standards for RCWs, the Joint Agreement also included separate
recommendations for several other covered products.\5\ The amended
standard levels recommended in the Joint Agreement for RCWs are
presented in Table II.1, expressed in terms of the EER and WER metrics
as measured according to the newly established test procedure contained
in appendix J. Details of the Joint Agreement recommendations for other
products are provided in the Joint Agreement posted in the docket for
this rulemaking.\6\
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\4\ The signatories to the Joint Agreement include the
Association of Home Appliance Manufacturers (``AHAM''), American
Council for an Energy-Efficient Economy, Alliance for Water
Efficiency, Appliance Standards Awareness Project, Consumer
Federation of America, Consumer Reports, Earthjustice, National
Consumer Law Center, Natural Resources Defense Council, Northwest
Energy Efficiency Alliance, and Pacific Gas and Electric Company.
Members of AHAM's Major Appliance Division that make the affected
products include: Alliance Laundry Systems, LLC; Asko Appliances AB;
Beko US Inc.; Brown Stove Works, Inc.; BSH Home Appliances
Corporation; Danby Products, Ltd.; Electrolux Home Products, Inc.;
Elicamex S.A. de C.V.; Faber; Fotile America; GE Appliances, a Haier
Company; L'Atelier Paris Haute Design LLG; LG Electronics; Liebherr
USA, Co.; Midea America Corp.; Miele, Inc.; Panasonic Appliances
Refrigeration Systems (PAPRSA) Corporation of America; Perlick
Corporation; Samsung Electronics America, Inc.; Sharp Electronics
Corporation; Smeg S.p.A; Sub-Zero Group, Inc.; The Middleby
Corporation; U-Line Corporation; Viking Range, LLC; and Whirlpool
Corporation.
\5\ The Joint Agreement contained recommendations for six
covered products: refrigerators, refrigerator-freezers, and
freezers; RCWs; clothes dryers; dishwashers; cooking products; and
miscellaneous refrigeration products.
\6\ The Joint Agreement is available in the docket at
www.regulations.gov/comment/EERE-2017-BT-STD-0014-0505.
Table II.1--Recommended Amended Energy Conservation Standards for Residential Clothes Washers
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Minimum energy Minimum water
Product class efficiency ratio efficiency ratio Compliance date
(lb/kWh/cycle) (lb/gal/cycle)
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Top-Loading, Ultra-Compact (less than 3.79 0.29 March 1, 2028.
1.6 ft\3\ capacity).
Top-Loading, Standard-Size (1.6 ft\3\ 4.27 0.57
or greater capacity).
Front-Loading, Compact (less than 1.6 5.02 0.71
ft\3\ capacity).
Front-Loading, Standard-Size (1.6 ft\3\ 5.52 0.77
or greater capacity).
Semi-Automatic Clothes Washers......... 2.12 0.27
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After carefully considering the recommended energy conservation
standards for RCWs in the Joint Agreement, DOE determined that these
recommendations were in accordance with the statutory requirements of
42 U.S.C. 6295(p)(4) for the issuance of a direct final rule and
published a direct final rule on March 15, 2024 (``March 2024 Direct
Final Rule''). 89 FR 19026. DOE evaluated whether the Joint Agreement
satisfies 42 U.S.C. 6295(o), as applicable, and found that the
recommended standard levels would, among other things, result in
significant energy savings and are technologically feasible and
economically justified. Id. at 89 FR 19113-19120. Accordingly, DOE
adopted the recommended efficiency levels for RCWs as the amended
standard levels in the March 2024 Direct Final Rule. Id.
The standards adopted in the March 2024 Direct Final Rule apply to
product classes listed in Table II.2 and that are manufactured in, or
imported into, the United States starting on March 1, 2028. The March
2024 Direct Final Rule provides a detailed discussion of DOE's analysis
of the benefits and burdens of the amended standards pursuant to the
criteria set forth in EPCA. Id.
[[Page 84067]]
Table II.2--Amended Energy Conservation Standards for Residential
Clothes Washers
[Compliance starting March 1, 2028]
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Minimum energy Minimum water
Product class efficiency ratio efficiency ratio
(lb/kWh/cycle) (lb/gal/cycle)
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Automatic Clothes Washers:
Top-Loading Ultra-Compact 3.79 0.29
(less than 1.6 ft\3\
capacity)....................
Top-Loading Standard-Size (1.6 4.27 0.57
ft\3\ or greater capacity)
\1\..........................
Front-Loading Compact (less 5.02 0.71
than 3.0 ft\3\ capacity) \2\.
Front-Loading Standard-Size 5.52 0.77
(3.0 ft\3\ or greater
capacity) \3\................
Semi-Automatic Clothes Washers.... 2.12 0.27
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\1\ The energy conservation standards in this table do not apply to top-
loading standard-size clothes washers with an average cycle time less
than 30 minutes.
\2\ The energy conservation standards in this table do not apply to
front-loading clothes washers with a capacity greater than or equal to
1.6 ft\3\ and less than 3.0 ft\3\ with an average cycle time of less
than 45 minutes.
\3\ The energy conservation standards in this table do not apply to
front-loading standard-size clothes washers with an average cycle time
less than 45 minutes.
As required by EPCA, DOE also simultaneously published a NOPR
proposing the identical standard levels contained in the March 2024
Direct Final Rule. 89 FR 18836. DOE considered whether any adverse
comment received during the 110-day comment period following the
publication of the March 2024 Direct Final Rule provided a reasonable
basis for withdrawal of the direct final rule under the provisions in
42 U.S.C. 6295(p)(4)(C).
III. Comments on the Direct Final Rule
As discussed in section I of this document, not later than 120 days
after publication of a direct final rule, DOE shall withdraw the direct
final rule if: (1) DOE receives one or more adverse public comments
relating to the direct final rule or any alternative joint
recommendation; and (2) based on the rulemaking record relating to the
direct final rule, DOE determines that such adverse public comments or
alternative joint recommendation may provide a reasonable basis for
withdrawing the direct final rule. (42 U.S.C. 6295(p)(4)(C)(i))
DOE received comments in response to the March 2024 Direct Final
Rule from the interested parties listed in Table III.1.\7\
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\7\ Table III.1 excludes one non-substantive comment received
from an anonymous commenter.
Table III.1--List of Commenters With Written Submissions in Response to the March 2024 Direct Final Rule
----------------------------------------------------------------------------------------------------------------
Comment No. in
Commenter(s) Abbreviation the Docket Commenter type
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The Attorneys General of the AGs of FL et al... 526 State Government Officials.
States of Florida, Alabama,
Arkansas, Georgia, Idaho,
Indiana, Iowa, Kansas,
Kentucky, Louisiana,
Mississippi, Missouri,
Montana, Nebraska, New
Hampshire, Oklahoma, South
Carolina, South Dakota,
Tennessee, Texas, Virginia,
and West Virginia.
The Attorney General of the AG of MT.......... 529 State Government Official.
State of Montana.
Association of Home Appliance AHAM.............. 525 Trade Association.
Manufacturers.
Anonymous...................... Anonymous......... 530 Individual.
Appliance Standards Awareness ASAP et al........ 527 Advocacy Organizations.
Project, Alliance for Water
Efficiency, American Council
for an Energy-Efficient
Economy, Consumer Federation
of America, Consumer Reports,
Earthjustice, National
Consumer Law Center, Natural
Resources Defense Council,
Northwest Energy Efficiency
Alliance, and Pacific Gas and
Electric Company.
New York State Energy Research NYSERDA and CEC... 519 State Agencies.
and Development Authority and
California Energy Commission.
Consumer Federation of America, CFA et al......... 528 Advocacy Organizations.
Consumer Reports, Green Energy
Consumers Alliance, National
Consumer Law Center, and U.S.
Public Interest Research Group.
Rebekah Finn................... Finn.............. 524 Individual.
Martina G[oacute]mez de la G[oacute]mez de la 516 Individual.
Torre. Torre.
Emma Leamy..................... Leamy............. 518 Individual.
Representative Stephanie Bice.. Rep. Bice......... 517 Federal Government Official.
Bill Word and David Daquin..... Word and Daquin... * 521, 522 Individual.
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* Comments No. 521 and 522 are identical. DOE cites comment No. 521 in this document.
A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\8\
The following sections discuss the substantive comments DOE received on
the March 2024 Direct Final
[[Page 84068]]
Rule as well as DOE's determination that the comments do not provide a
reasonable basis for withdrawal of the direct final rule.
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\8\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to develop
energy conservation standards for RCWs. (Docket No. EERE-2017-BT-
STD-0014, which is maintained at: www.regulations.gov). The
references are arranged as follows: (commenter name, comment docket
ID number at page of that document).
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A. General Comments
NYSERDA and CEC reiterated their sustained support for the
recommendations issued their October 5, 2023 letter.\9\ (NYSERDA and
CEC, No. 519 at p. 1)
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\9\ NYSERDA and CEC letter available at www.regulations.gov/comment/EERE-2017-BT-STD-0014-0506.
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AHAM supported the March 2024 Direct Final Rule for RCWs because it
establishes standards that are consistent with recommendations
submitted in the Joint Agreement. (AHAM, No. 525 at p. 1) AHAM
commented that it finds DOE has satisfied all EPCA criteria for issuing
the March 2024 Direct Final Rule because the recommended energy
conservation standards were designed by the Joint Stakeholders
(including manufacturers of various sizes as well as consumer,
environmental, and efficiency advocacy groups; a utility; and some
States) to achieve the maximum improvement in energy efficiency that is
technologically feasible and economically justified in accordance with
the provisions of 42 U.S.C. 6295(o); and because DOE issued the March
2024 Direct Final Rule with a proposed rule identical to the standard
established in the March 2024 Direct Final Rule and allowed 110 days
for public comment, which is consistent with EPCA requirements. (AHAM,
No. 525 at pp. 7-8)
ASAP et al. supported the standards in the March 2024 Direct Final
Rule, as they reflect the recommendation in the Joint Agreement
submitted to DOE in September 2023 in conjunction with AHAM. (ASAP et
al., No. 527 at pp. 1-2)
CFA et al. strongly supported the March 2024 Direct Final Rule,
which they noted is one of many completed and pending efficiency
standards that will together significantly reduce consumer costs and
climate pollution, as well as reduce emissions of nitrogen oxides,
which cause health issues. (CFA et al., No. 528 at pp. 1-2)
DOE received comments from individual commenters who expressed
support for the standards promulgated in the March 2024 Direct Final
Rule. (G[oacute]mez de la Torre, No. 516 at p. 1; Leamy, No. 518 at p.
1; Finn, No. 524 at p. 1; Anonymous, No. 530 at p. 1)
Rep. Bice submitted a comment in opposition to the standards
adopted in the March 2024 Direct Final Rule. (Rep. Bice, No. 517 at p.
1)
Word and Daquin commented that they are harmed by the March 2024
Direct Final Rule because their choice of preferred RCW would be
eliminated by the rule. Word and Daquin recommended DOE repeal the
March 2024 Direct Final Rule and withdraw the proposed rule. (Word and
Daquin, No. 521 at p. 10)
The AGs of FL et al. asserted that the March 2024 Direct Final Rule
over-regulates American households and requested that DOE reconsider
it. (AGs of FL et al., No. 526 at p. 1) The AG of MT expressed
agreement with the AGs of FL et al.'s comments. (AG of MT, No. 529 at
p. 1)
As discussed in more detail below, DOE has determined that these
comments do not provide a reasonable basis to withdraw the March 2024
Direct Final Rule.
B. Authority To Regulate Water Use
DOE received comments regarding DOE's statutory authority to
regulate the water use of RCWs.
Word and Daquin commented that DOE has gone beyond its statutory
authority in increasing water efficiency standards of certain consumer
appliances without lawful authority. Word and Daquin asserted that DOE
lacks the authority to increase the stringency of water use standards
for products other than showerheads, faucets, water closets, and
urinals. (Word and Daquin, No. 521 at p. 1)
Word and Daquin also commented that based on the history of EPCA
and the recent ruling of the Fifth Circuit Court of Appeals, DOE does
not have the authority to regulate the water use of RCWs. Word and
Daquin commented that the Fifth Circuit Court of Appeals recognized
that ``No part of [EPCA] indicates Congress gave DOE power to regulate
water use for energy-using appliances.'' Louisiana v. United States
Dep't of Energy, 90 F.4th 461, 471 (5th Cir. 2024). Word and Daquin
also noted that according to the Fifth Circuit, ``EPCA does not appear
to contemplate overlap between the products subject to `energy'
regulation and those subject to `water' regulation,'' noting that this
is because the statute authorized DOE to regulate ``energy use, or, [.
. .] water use,'' and ``[t]he word `or' is almost always disjunctive.''
Id. at 470-471 (quoting Encino Motorcars, LLC v. Navarro, 584 U.S. 79,
80 (2018)). Word and Daquin asserted that the March 2024 Direct Final
rule, in requiring a minimum water efficiency ratio for clothes washers
beyond that required by statute, is irreconcilable with the opinion of
the Fifth Circuit Court of Appeals. (Id. at pp. 1-5)
The AG of MT disputed DOE's interpretation of its statutory
authority and asserted that DOE does not have authority to act contrary
to the plain text of EPCA. (AG of MT, No. 529 at pp. 6-7)
As discussed in the March 2024 Direct Final Rule, EPCA prescribed
energy conservation standards with both energy and water use
requirements for RCWs. 89 FR 19026, 19032. In establishing energy
conservation standards with both energy and water use performance
standards for RCWs, Congress also directed DOE to ``determin[e] whether
to amend'' those standards. (42 U.S.C. 6295(g)(9)(B)) Congress's
directive, in section 6295(g)(9)(B), to consider whether ``to amend the
standards in effect for RCWs'' refers to ``the standards'' established
in the immediately preceding paragraph, 6295(g)(9)(A), where Congress
established energy conservation standards with both energy and water
use performance standards for RCWs. Indeed, the energy and water use
performance standards for RCWs (both top-loading and front-loading) are
each contained within a single subparagraph. See id. Accordingly, DOE's
authority, under 6295(g)(9)(B), includes consideration of amended
energy and water use performance standards for RCWs.
Similarly, DOE's authority under 42 U.S.C. 6295(m) to amend
``standards'' for covered products includes amending both the energy
and water use performance standards for RCWs. Neither section
6295(g)(9)(B) nor section 6295(m) limit their application to ``energy
use standards.'' Rather, they direct DOE to consider amending ``the
standards,'' 42 U.S.C. 6295(g)(9)(B), or simply ``standards,'' Id.
6295(m)(1)(B), which may include both energy and water use performance
standards.
C. Anti-Backsliding
EPCA, as codified, contains what is known as an ``anti-
backsliding'' provision, which prevents the Secretary from prescribing
any amended standard that either increases the maximum allowable energy
use or decreases the minimum required energy efficiency of a covered
product. (42 U.S.C. 6295(o)(1))
The AG of MT commented that the fact the Joint Agreement is
contingent upon other parts being implemented conflicts with the anti-
backsliding provision of EPCA. (AG of MT, No. 529 at pp. 1-2)
DOE addressed this issue in the March 2024 Direct Final Rule. As
discussed there, the Joint Agreement was contingent upon DOE initiating
[[Page 84069]]
rulemaking processes to adopt all of the recommended standards. In
other words, DOE could not pick and choose which recommendations in the
Joint Agreement to implement. See 89 FR 19026, 19036. As described,
DOE's adoption of the recommended standards conforms with the anti-
backsliding provision in 42 U.S.C. 6295(o)(1).
The AG of MT stated that DOE must consider energy efficiency over
the entire product lifecycle. The AG of MT agreed with DOE's statement
that conscientious energy use is more complicated than increasing
efficiency alone, and the AG of MT referenced documents with quotes
from DOE officials testifying to this sentiment. The AG of MT commented
that DOE's use of a single lifespan in its analysis for this rulemaking
was in error, and given its statements about the energy consumed in raw
materials, manufacturing, etc., its efficiency standards may violate
anti-backsliding prohibitions in EPCA when shorter lifespans are
considered, especially if the full fuel cycle (``FFC'') costs of short
lifespans are accounted for. (AG of MT, No. 529 at pp. 3-4)
As described in the March 2024 Direct Final Rule, DOE did not use a
single lifespan in its analysis for the RCWs rulemaking. Instead, DOE
assigned a range of lifespan from 1 to 30 years, based on the Weibull
lifetime distribution. DOE further notes that the lifetime distribution
used in the March 2024 Direct Final Rule is based on actual lifetime
values in the field, which were developed from historical shipments
data and surveys. 89 FR 19026, 19060. In addition, DOE is unaware of
data that suggests a different lifetime associated with the technology
options considered in the March 2024 Direct Final Rule, and no such
data was provided by stakeholders. Id.
As discussed previously, DOE may not prescribe an amended standard
that increases the maximum allowable energy use or decreases the energy
efficiency of a covered product. Further, EPCA defines the term
``energy use'' to mean the quantity of energy directly consumed by a
consumer product at point of use, determined in accordance with test
procedures under 42 U.S.C. 6293. (42 U.S.C. 6291(4)) EPCA similarly
defines ``energy efficiency'' to mean the ratio of the useful output of
services from a consumer product to the energy use [as that term is
defined] of such product, determined in accordance with test procedures
under 42 U.S.C. 6293. (42 U.S.C. 6291(5)) Neither the energy use nor
the energy efficiency of a product, as those terms are defined in EPCA,
is dependent upon the lifespan of the product. As a result, product
lifespan has no effect on whether an amended standard violates the
anti-backsliding provision in 42 U.S.C. 6295(o)(1).
As product lifespan does not affect energy use or energy efficiency
as defined in EPCA, DOE has determined that the comment provided by the
AG of MT does not provide a reasonable basis for withdrawal of the
March 2024 Direct Final Rule.
D. Economic Justification
DOE must follow specific statutory criteria for prescribing new or
amended standards for covered products, including RCWs. Any new or
amended standard for a covered product must be designed to achieve the
maximum improvement in energy efficiency that the Secretary determines
is technologically feasible and economically justified. (42 U.S.C.
6295(o)(2)(A)) In deciding whether a proposed standard is economically
justified, DOE must determine whether the benefits of the standard
exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this
determination after receiving comments on the proposed standard, and by
considering, to the greatest extent practicable, the following seven
statutory factors:
(1) The economic impact of the standard on manufacturers and
consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average
life of the covered products in the type (or class) compared to any
increase in the price, initial charges, or maintenance expenses for the
covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water)
savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered
products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in
writing by the Attorney General, that is likely to result from the
standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
DOE received several comments on its determination of economic
justification under the statutory criteria.
Rep. Bice asserted that increased standards will lead to increased
production costs for manufacturers, which will subsequently lead to
increased costs to consumers. Rep. Bice added that the adopted
standards will limit consumer choice, drive up prices, and impose
onerous regulations on American manufacturers, many of whom are small
businesses. (Rep. Bice, No. 517 at p. 1)
The AGs of FL et al. commented that while they acknowledge that DOE
has reduced the stringency as compared to the previously proposed
standards, the March 2024 Direct Final Rule does not weigh heavily
enough the appliance cost increase that the rule will cause and that
will be borne by American consumers. (AGs of FL et al., No. 526 at p.
1)
DOE considered the impacts to manufacturers, including the
potential increase in manufacturing costs, in the manufacturing impact
analysis in the March 2024 Direct Final Rule. 89 FR 19026, 19071-19077,
19092-19098. At the adopted standard levels, DOE's data demonstrate no
lessening of consumer choice, product utility, or performance would
occur. DOE estimates that approximately 49 percent of annual shipments
currently meet the adopted standard levels. Id. at 89 FR 19119. In the
March 2024 Direct Final Rule, the life-cycle cost (``LCC'') analysis
calculated the distribution of impacts across a nationally
representative sample of US households. As demonstrated by the LCC
analysis, at the adopted standard, the average LCC savings are positive
for all product classes and the fraction of consumers experiencing a
net LCC cost is about 12 percent. Id. Therefore, the March 2024 Direct
Final Rule did consider the economic impact of the standard on the
manufacturers and on the consumers of the products subject to such
standard (42 U.S.C. 4296(o)(2)(B)(i)(I)), and DOE has determined that
the comments provided by the AGs of FL et al. and Rep. Bice do not
provide a reasonable basis for withdrawal of the March 2024 Direct
Final Rule.
AHAM commented that the recommended standards are economically
justified as required by 42 U.S.C. 6295(o)(2)(B)(i)(I) and will not
result in lessening of utility, reliability, performance or
availability of RCWs considered under 42 U.S.C. 6295(o)(2)(B)(i)(IV).
AHAM commented that under the standards adopted in the March 2024
Direct Final Rule, only 2 percent of consumers would experience a net
cost. AHAM commented that the standards adopted in the March 2024
Direct Final Rule also decrease the number of low-income consumers that
could experience a net cost. In addition, AHAM noted that manufacturer
costs to comply with the final standard are less under the March 2024
Direct Final Rule
[[Page 84070]]
than under the previously proposed standards. (AHAM, No. 525 at p. 6)
ASAP et al. commented that the amended standards will particularly
benefit low-income consumers, who spend three times more of their
income on energy costs compared to non-low-income households. ASAP et
al. commented that the standards will also benefit renters, whose
landlords might not otherwise purchase energy-saving RCWs. (ASAP et
al., No. 527 at p. 2)
CFA et al. commented that the standards adopted in the March 2024
Direct Final Rule will reduce energy use by about 10 percent relative
to the least-efficient RCW sold today while also cutting water waste,
and for a household replacing an inefficient top-loading RCW, the new
standards will provide annual utility bill savings of $23 on average.
CFA et al. further noted that the average PBP for low-income households
for top-loading and front-loading RCWs are 3.5 years and 0.7 years,
respectively. (CFA et al., No. 528 at p. 1)
The AG of MT stated that DOE's reliance on the Energy Information
Administration's (``EIA's'') Annual Energy Outlook 2023 (``AEO2023'')
for pricing trends is faulty due to federal rulemakings being issued
that will force existing generating capacity offline, spike electricity
demand, and decrease fossil fuel supply, as illustrated with several
documents attached to the comment. (AG of MT, No. 529 at p. 5)
DOE contends that AEO2023 remains the best available source for
projections of future energy price trends based on adopted energy
policies. DOE also performed sensitivity analyses using alternate
AEO2023 growth scenarios with low and high energy prices relative to
the reference scenario in the March 2024 Direct Final Rule to assess
the impact of alternative energy price projections. 89 FR 19026, 19059.
The results of these scenarios are available in appendix 10D of the
March 2024 Direct Final Rule Technical Support Document (``TSD'') and
show that consumers of residential clothes washers would still
experience positive cumulative consumer net present value (``NPV'')
even when considering lower and higher energy prices.
Therefore, the March 2024 Direct Final Rule did take into account
energy price variability in its analysis, and DOE has determined that
the comment provided by the AG of MT does not provide a reasonable
basis for withdrawal of the March 2024 Direct Final Rule.
The AG of MT stated that DOE acknowledges but disregards consumer
preference and assumes consumers are ignorant. The AG of MT attached
studies demonstrating consumer preference for product lifetime over
energy consumption, and the AG of MT commented that these longer-life
appliances may use less energy over the entire life cycle and be a
lower cost to the consumer. (AG of MT, No. 529 at p. 2)
DOE did not disregard consumer preference but rather noted in the
March 2024 Direct Final Rule that the economics literature provides a
wide-ranging discussion of how consumers trade off up-front costs and
energy savings in the absence of government intervention. 89 FR 19026,
19113. Much of this literature attempts to explain why consumers appear
to undervalue energy efficiency improvements, as the AG of MT alleged
in their comment. There is evidence that consumers undervalue future
energy savings as a result of (1) a lack of information; (2) a lack of
sufficient salience of the long-term or aggregate benefits; (3) a lack
of sufficient savings to warrant delaying or altering purchases; (4)
excessive focus on the short term, in the form of inconsistent
weighting of future energy cost savings relative to available returns
on other investments; (5) computational or other difficulties
associated with the evaluation of relevant trade-offs; and (6) a
divergence in incentives (for example, between renters and owners, or
builders and purchasers). Id. at 89 FR 19114 Having less-than-perfect
foresight and a high degree of uncertainty about the future, consumers
may trade off these types of investments at a higher-than-expected rate
between current consumption and uncertain future energy cost savings.
Id.
Potential changes in the benefits and costs associated with a
standard due to changes in consumer purchase decisions were included in
the analysis for the March 2024 Direct Final Rule in two ways. Id.
First, if consumers forgo the purchase of a product in the standards
case, as estimated based on price elasticity related to empirical data
on appliances, this decreases sales for product manufacturers, and the
impact on manufacturers attributed to lost revenue is included in the
manufacturer impact analysis. Id. Second, DOE accounts for energy
savings attributable only to products actually used by consumers in the
standards case; if a standard decreases the number of products
purchased by consumers, this decreases the potential energy savings
from an energy conservation standard.
Further, the AG of MT stated that the reliability of products
affected by the rulemaking will decrease due to complexity increases,
which the commenters asserted is supported by engineering facts
illustrated in a document attached to their comment, yet DOE does not
address this issue. The AG of MT also commented that complexity
increases will lead to less economic viability of repair, which is not
reflected in DOE's assumption that the rulemaking will have no impact
on lifespan. The AG of MT commented that DOE disregards the fact that
reliability can be increased by lightening the electrical, mechanical,
thermal, and other conditions of operation of the components, which
tends to decrease energy efficiency but results in less repair downtime
and longer times before replacement and, therefore, decreased costs, as
illustrated in attached documents. (AG of MT, No. 529 at pp. 3-5)
AHAM commented that the March 2024 Direct Final Rule addresses
AHAM's key concerns with the March 2023 NOPR. AHAM added that the
technology options DOE identified for meeting the standard levels in
the March 2024 Direct Final Rule are established technologies used in
the market today and do not negatively impact product reliability.
(AHAM, No. 525 at p. 7)
ASAP et al. commented that they did not expect the standards in the
March 2024 Direct Final Rule to have any impact on product reliability
because the amended standards can be met with simple design changes
that have already been incorporated in many models on the market today.
ASAP et al. presented a figure of historical data from EIA's
Residential Energy Consumption Survey (``RECS'') showing that the
distribution of RCW age remained largely unchanged between 2005 and
2020 as RCW efficiency improved. (ASAP et al., No. 527 at pp. 4-5)
In contrast to the comment from the AG of MT and as noted in the
March 2024 Direct Final Rule, DOE did take into consideration the cost
of repair and included higher repair costs for more efficient products
when supported by available data. See 89 FR 19026, 19059. Hence,
notwithstanding theoretical conjecture that higher-efficiency products
may have poor reliability based on simplified textbook models, no real-
world evidence or data related to the technologies used at the adopted
standard levels can be found clearly supporting such a correlation. The
AG of MT did not specify how the attached documents on network node
analysis and reliability theory correspond to the technologies used at
the adopted standard levels for RCWs. In the absence of data specific
to the technologies used in RCWs, DOE has no practical basis to model
the theoretical concern from the
[[Page 84071]]
AG of MT at the adopted standard levels.
DOE further notes that the lifetime distribution used in the March
2024 Direct Final Rule is based on actual lifetime values in the field,
which were developed from historical shipments data and surveys. DOE
did not find that the average lifetime for RCWs has changed. 89 FR
19026, 19060. DOE is unaware of data that suggests a different lifetime
associated with the technology options considered in the March 2024
Direct Final Rule, and no such data was provided by stakeholders. In
response to the March 2024 Direct Final Rule, AHAM commented that the
adopted standard will not impact the reliability of products, and hence
lifetime of the product, at the adopted level, and it further stated
that the standard levels are achievable by technology readily available
on the market. (AHAM, No. 525 at p. 6) As there is no data to suggest
different lifetime distributions for products at the adopted standards
level, the comment from the AG of MT does not provide a reasonable
basis for withdrawal of the March 2024 Direct Final Rule.
As discussed in the March 2024 Direct Final Rule, DOE did take into
account product reliability, lifetimes, and cost of repair when
considering the LCC of more efficient products when supported by
available data. See 89 FR 19026, 19060. Therefore, the March 2024
Direct Final Rule did take into account consumer purchase decisions in
its analysis, and DOE has determined that the comment provided by the
AG of MT does not provide a reasonable basis for withdrawal of the
March 2024 Direct Final Rule.
The AG of MT stated their belief that greenhouse gas (``GHG'')
emissions and climate change impacts should not be part of EPCA
rulemakings, but given their inclusion, DOE must consider them
throughout the entire life cycle of the product, including
manufacturing and potential reductions in lifespan due to increased
complexity. The AG of MT commented that the March 2024 Direct Final
Rule failed to adequately address these full life cycle impacts. (AG of
MT, No. 529 at p. 6)
As previously stated in section III.C of this document, the comment
from the AG of MT points to a statement made to the U.S. Senate
Subcommittee on Energy to indicate that 40 to 60 percent of the carbon
footprint for many consumer products can be attributed to the supply
chain.\10\ However, the McKinsey report, which is the primary source
for the statement made to the U.S. Subcommittee on Energy, is only
referring to the manufacturing company's energy and carbon footprint
that can reside upstream in its supply chain and does not include the
energy and emissions associated with the usage phase of the appliance
life cycle, which represents more than 90 percent of the total for
large appliances.\11\ As such, the energy and carbon footprint
associated with supply chain likely accounts for approximately 4 to 6
percent of the overall carbon footprint of a product. Furthermore,
there is no data suggesting that the supply chain carbon footprint
would be different between baseline units and units that meet the
adopted standard. In the March 2024 Direct Final Rule, DOE accounted
for the environmental and public health benefits associated with the
more efficient use of energy, including those connected to global
climate change, as they are important to take into account when
considering the need for national energy conservation under EPCA. (See
42 U.S.C. 6295(o)(2)(B)(i)(IV)) 89 FR 19026, 19110-19113. This analysis
focused on the estimated reduced emissions expected to result during
the lifetime of RCWs shipped during the projection period. Id
---------------------------------------------------------------------------
\10\ See www.energy.senate.gov/services/files/3D26FA56-F102-9E9F-BEA4-52BB0085B19A.
\11\ Gonzalez, A., A. Chase, and N. Horowitz. 2012. ``What We
Know and Don't Know about Embodied Energy and Greenhouse Gases for
Electronics, Appliances, and Light Bulbs.'' Energy Solutions and
Natural Resources Defense Council. ACEEE Summer Study on Energy
Efficiency in Buildings.
---------------------------------------------------------------------------
The AG of MT stated that the Interagency Working Group's
(``IWG's'') SC-GHG based on global impacts is inconsistent with EPCA's
requirements for standards to consider economic implications to U.S.
consumers. The AG of MT claimed that DOE erroneously appears to assume
that all the benefits accrue to U.S. citizens, despite using global
values. The AG of MT cited the case of Louisiana v. Biden to
demonstrate questions related to the accuracy of the IWG's SC-GHG
estimates. (AG of MT, No. 529 at p. 6)
DOE reiterates its view that the environmental and public health
benefits associated with more efficient use of energy, including those
connected to global climate change, are important to take into account
when considering the need for national energy conservation. (See 42
U.S.C. 6295(o)(2)(B)(i)(IV)) In addition, Executive Order 13563, which
was reaffirmed on January 21, 2021, stated that each agency must, among
other things, ``select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity).'' Regarding the use of
global SC-GHG values, many climate impacts that affect the welfare of
U.S. citizens and residents are better reflected by global measures of
SC-GHG. In addition, assessing the benefits of U.S. GHG mitigation
activities requires consideration of how those actions may affect
mitigation activities by other countries, as those international
mitigation actions will provide a benefit to U.S. citizens and
residents by mitigating climate impacts that affect U.S. citizens and
residents.
The AG of MT stated the monetized GHG benefits largely accrue
centuries in the future, well beyond the rulemaking analysis period.
The AG of MT also stated that DOE improperly mixed discount rates in
its cost-benefit analysis. (AG of MT, No. 529 at p. 6)
DOE's March 2024 Direct Final Rule analysis considers the costs and
benefits associated with 30 years of shipments of a covered product.
Because a portion of products shipped within this 30-year period
continue to operate beyond 30 years, DOE accounts for energy cost
savings and reductions in emissions until all products shipped within
the 30-year period are retired. 89 FR 19026, 19073. In the case of
carbon dioxide emissions, which remain in the atmosphere and contribute
to climate change for many decades, the benefits of reductions in
emissions likewise occur over a lengthy period; to not include such
benefits would be inappropriate. Id.
With regards to discount rates used, the IWG found that the use of
the social rate of return on capital (7 percent under current Office of
Management and Budget Circular A-4 guidance) to discount the future
benefits of reducing GHG emissions inappropriately underestimates the
impacts of climate change for the purposes of estimating the SC-GHG.
Consistent with the findings of the National Academies and the economic
literature, the IWG continued to conclude that the consumption rate of
interest is the theoretically appropriate discount rate in an
intergenerational context and recommended that discount rate
uncertainty and relevant aspects of intergenerational ethical
considerations be accounted for in selecting future discount rates.
Regarding mixing discount rates, DOE consulted the National Academies'
2017 recommendations on how SC-GHG estimates can ``be combined in
Regulatory Impact Analyses (``RIAs'') with other cost and benefits
estimates that may use different discount rates.''
[[Page 84072]]
The National Academies reviewed several options, including ``presenting
all discount rate combinations of other costs and benefits with [SC-
GHG] estimates.'' 89 FR 19026, 19080.\12\
---------------------------------------------------------------------------
\12\ Following the issuance of the March 2024 Direct Final Rule,
DOE issued a rulemaking document in an unrelated matter in which it
preliminarily determined that new, updated SC-GHG estimates
promulgated in 2023 by EPA (2023 SC-GHG estimates) represent a
significant improvement in estimating SC-GHG. See 89 FR 59692,
59700-59701. DOE preliminarily determined that the updated 2023 SC-
GHG estimates reflect the best available scientific and analytical
evidence and methodologies, are accordingly the most appropriate for
DOE analyses, and best facilitate sound decision-making by
substantially improving the transparency of the estimates and
representations of uncertainty inherent in such estimates. Id. DOE
welcomed comment on that preliminary determination. Id.
Because it issued the March 2024 Direct Final Rule prior to
making that preliminary determination, DOE estimated the climate
benefits of the standards adopted in this rule using the IWG's SC-
GHG estimates. As noted in the text, DOE's decision to adopt the
March 2024 Direct Final Rule's standards did not depend on the cost
of greenhouse gasses; nor would the decision change based on a
revised estimate of the cost of greenhouse gasses.
---------------------------------------------------------------------------
E. Unavailability of Performance Characteristics
EPCA specifies the Secretary may not prescribe an amended or new
standard if interested persons have established by a preponderance of
the evidence that the standard is likely to result in the
unavailability in the United States in any covered product type (or
class) of performance characteristics (including reliability),
features, sizes, capacities, and volumes that are substantially the
same as those generally available in the United States. (42 U.S.C.
6295(o)(4))
The AGs of FL et al. stated that the March 2024 Direct Final Rule
does not account for the lower performance of RCWs that AHAM identified
through members' independent testing of RCWs at the new standard
level.\13\ (AGs of FL et al., No. 526 at p. 3) The AGs of FL et al.
asserted that the standards in the March 2024 Direct Final Rule will
leave consumers struggling with washers that take longer to clean
clothes. (AGs of FL et al., No. 526 at p. 1)
---------------------------------------------------------------------------
\13\ DOE notes that the AHAM members' testing referred to by the
AGs of FL et al. in this statement reflected testing at the standard
levels proposed in the March 2023 NOPR (i.e., not the ``new standard
level'' adopted in the March 2024 Direct Final Rule).
---------------------------------------------------------------------------
Rep. Bice asserted that the adopted standards will limit consumer
choice. (Rep. Bice, No. 517 at p. 1)
ASAP et al. commented that the amended standards will improve
washing performance for top-loading RCWs and will not impact other
performance attributes. ASAP et al. added that RCWs that already meet
the new standards provide improved washing performance relative to
less-efficient models, as demonstrated by Consumer Reports studies.
(ASAP et al., No. 527 at pp. 2-3)
ASAP et al. also commented that the standards in the March 2024
Direct Final Rule can be met across the entire capacity range of top-
loading RCWs, so indicating that the standards will not preclude the
availability of smaller-capacity RCWs. (Id. at p. 4) ASAP et al. noted
that the amended standards will not require an increase in cycle time.
ASAP et al. further commented that there is no evidence that the
frequency of running multiple RCW cycles has increased over time or
will increase in the future as a result of the amended standards. (Id.
at pp. 3-4)
AHAM commented that it supported the energy conservation standards
in the March 2024 Direct Final Rule because DOE's data demonstrate, and
industry experience confirms that RCWs at the amended standard level
can maintain good cleaning performance and that the amended standards
do not preclude the ability to provide high wash temperatures. AHAM
further commented that there is no significant difference in cycle time
between RCWs in its data set that are less efficient than the amended
standards and those that just meet the standard levels. Thus, AHAM
commented that it supported the energy conservation standards adopted
in the March 2024 Direct Final Rule. (AHAM, No. 525 at p. 3)
AHAM commented that the energy conservation standards adopted in
the March 2024 Direct Final Rule will not result in significant
lessening of utility, reliability, performance, or availability of the
covered products as prohibited under the so-called ``safe harbor''
exception of 42 U.S.C. 6295(o)(2)(B)(IV). (Id. at p. 6)
AHAM further noted that the energy conservation standards adopted
in the March 2024 Direct Final Rule are equivalent to current ENERGY
STAR levels for many product classes, and that there are a wide range
of products meeting the adopted standards currently available on the
market. AHAM therefore does not anticipate that the energy conservation
standards recommended in the Joint Agreement and established in the
March 2024 Direct Final Rule will negatively affect features or
performance, including cycle time. (Id. at p. 5)
NYSERDA and CEC reiterated their support for the recommendations in
the Joint Agreement and echoed the clarification regarding ``short
cycle'' products made in the February 15, 2024 letter to DOE by ASAP
and AHAM. This clarification specified that the recommendations in the
Joint Agreement did not address ``short cycle'' products for clothes
washers, clothes dryers, and dishwashers as so-called ``short cycle''
product classes did not exist at the time the recommendations were
submitted to DOE and do not exist at this time.\14\ This letter also
highlighted that the signatories to the Joint Agreement do not
anticipate that amended standards will negatively affect features or
performance, including cycle time. (NYSERDA and CEC, No. 519 at p. 1)
---------------------------------------------------------------------------
\14\ ASAP and AHAM letter available at www.regulations.gov/comment/EERE-2017-BT-STD-0014-0509.
---------------------------------------------------------------------------
DOE determined that the March 2024 Direct Final Rule would not
result in the unavailability of products that are substantially the
same as those currently available in the United States. 89 FR 19026,
19108-19109. Therefore, DOE has determined that the comments provided
by Rep. Bice and the AGs of FL et al. do not provide a reasonable basis
for withdrawal of the March 2024 Direct Final Rule.
F. Stakeholder Representation
Under 42 U.S.C. 6295(p)(4), interested persons that are fairly
representative of relevant points of view (including representatives of
manufacturers of covered products, States, and efficiency advocates),
as determined by DOE, may submit a joint recommendation to DOE for new
or amended energy conservation standards.
The AGs of FL et al. questioned the expertise and relevancy of
several advocacy groups who contributed to the Joint Agreement (i.e.,
the Alliance for Water Efficiency, Earthjustice, the Northwest Energy
Efficiency Alliance, the Natural Resource Defense Council, and the
National Consumer Law Center). The AGs of FL et al. asserted that none
of the advocacy groups has expertise in setting energy efficiency
standards for RCWs. (AGs of FL et al., No. 526 at pp. 4-5)
The AGs of FL et al. commented that there were several other groups
that commented on the March 2023 NOPR but did not appear in the joint
statement. The AGs of FL et al. stated that the joint agreement did not
include the National Apartment Association (``NAA'') and the National
Multifamily Housing Council (``NMHC''). NAA and NMHC previously raised
concerns about the effects of the rulemaking on mass-appliance
purchases, which will disproportionately affect low-income individuals.
(AGs of FL et al., No. 526 at pp. 5-6)
[[Page 84073]]
The AGs of FL et al. commented that while Massachusetts, New York,
and California supported the standards adopted in the March 2024 Direct
Final Rule, 21 States cautioned DOE about the March 2024 Direct Final
Rule's effects on consumer welfare; the AGs of FL et al. asserted that
EPCA requires DOE to receive the concurrence of States across the
ideological spectrum in order to proceed with a direct final rule
rather than acknowledge only the few opinions in favor without
receiving the support of a majority of States. The AGs of FL et al.
commented that many States also previously raised legal concerns with
DOE's previously proposed rule, which they stated were not resolved in
the March 2024 Direct Final Rule. The AGs of FL et al. commented that
States have a direct interest in protecting consumers and are also
directly affected by the rule because many State entities purchase
clothes washers. (AGs of FL et al., No. 526 at p. 6)
The AG of MT agreed with the AGs of FL et al.'s concerns over the
participants in the Joint Agreement underlying the March 2024 Direct
Final Rule, along with their concerns that the group does not comply
with EPCA. (AG of MT, No. 529 at p. 1)
The AGs of FL et al. stated one concern was that DOE engaged in
``administrative arm-twisting'' and indicated that AHAM's change of
approach from opposing to supporting the energy efficiency standards in
question reflects a subtle example of the effect of DOE's arm-twisting
on AHAM. (AGs of FL et al., No. 526 at p. 4)
AHAM commented that the stakeholders who submitted the Joint
Agreement are representative of a wide range of expert and relevant
points of view--including manufacturers of various sizes representing
nearly 100 percent of the market for consumer clothes dryers; consumer,
environmental, and efficiency advocacy groups; a utility; and several
States that participated in the negotiation discussions and filed
comments in support of the agreement. AHAM concluded that the March
2024 Direct Final Rule benefits both the manufacturers and consumers
that these organizations represent. (AHAM, No. 525 at p. 5)
In response to the comments regarding whether the Joint Agreement
was submitted by persons fairly representative of relevant points of
view, DOE reiterates that 42 U.S.C. 6295(p)(4) states that if the
criteria in 42 U.S.C. 6295(o) are met, the Secretary may issue a final
rule that establishes an energy conservation standard ``[o]n receipt of
a statement that is submitted jointly by interested persons that are
fairly representative of relevant points of view (including
representatives of manufacturers of covered products, States, and
efficiency advocates), as determined by the Secretary.'' (42 U.S.C.
6295(p))
As stated in the March 2024 Direct Final Rule, DOE determined that
this requirement was met. 89 FR 11434, 19038. The Joint Agreement
included a trade association, AHAM, which represents 12 manufacturers
of the subject covered products--RCWs. Id. The Joint Agreement also
included environmental and energy-efficiency advocacy organizations,
consumer advocacy organizations, and a gas and electric utility
company. Id. Additionally, DOE received a letter in support of the
Joint Agreement from the States of New York, California, and
Massachusetts (see comment No. 506). Id. DOE also received a letter in
support of the Joint Agreement from the gas and electric utility, San
Diego Gas and Electric, and the electric utility, Southern California
Edison (see comment No. 507). Id. Representatives from each of the
relevant points of view described in 42 U.S.C. 6295(p)(4) supported the
Joint Agreement.
DOE has ample authority to accept a joint statement in these
circumstances. EPCA does not require that the Joint Agreement be
representative of every point of view. Nor does it require that a
statement be submitted by all interested persons. Rather, it requires a
statement from a sufficient number and diversity of ``interested
persons'' such that the statement is ``fairly representative of
relevant points of view.'' The Joint Agreement presented here is such a
statement, as the Secretary determined.
Contrary to the commenters' suggestion, EPCA does not include any
requirement that ``relevant points of view'' must include ideologically
opposed points of view. Rather, EPCA ensures a diversity of opinions
and interests by requiring that parties that provide a joint agreement
must be fairly representative of relevant points of view (including
representatives of manufacturers of covered products, States, and
efficiency advocates), as determined by the Secretary. (42 U.S.C.
6295(p)(4)(A))
Moreover, regardless of whether amended energy conservation
standards are recommended as part of a joint agreement or proposed by
DOE, the standards have to satisfy the same criteria in 42 U.S.C.
6295(o). Thus, once DOE has determined that a joint agreement was
submitted by interested persons that are fairly representative of
relevant points of view, DOE then determines whether the joint
agreement satisfies the relevant statutory criteria. As a result, in
evaluating whether comments provide a reasonable basis for withdrawing
a direct final rule, it is the substance of the comments, not the
number of stakeholders that submit statements in favor of, or opposed
to, the joint agreement, that determines whether a rule should be
withdrawn.
DOE also finds the contention that the Joint Agreement parties are
not competent to present a statement for the purposes of section
6295(p) meritless. Contrary to the characterizations by the AGs of FL
et al., the parties to the Joint Agreement have an established
historical record of participation in DOE rulemakings and have
submitted detailed comments in the past that demonstrate a thorough
understanding of the technical, legal, and economic aspects of
appliance standards rulemakings, including factors affecting specific
groups such as low-income households.
In a follow-up letter from the parties to the Joint Agreement, each
organization provided a brief description of its background: American
Council for an Energy-Efficient Economy is a nonprofit research
organization and its independent analysis advances investments,
programs, and behaviors that use energy more effectively and help build
an equitable clean energy future. Alliance for Water Efficiency is a
nonprofit dedicated to efficiency and sustainable use of water that
provides a forum for collaboration around policy, information sharing,
research, education, and stakeholder engagement. ASAP organizes and
leads a broad-based coalition effort that works to advance new
appliance, equipment, and lighting standards that cut emissions that
contribute to climate change and other environmental and public health
harms, save water, and reduce economic and environmental burdens for
low- and moderate-income households. AHAM represents more than 150
member companies that manufacture 90 percent of the major portable and
floor care appliances shipped for sale in the United States. CFA is an
association of more than 250 non-profit consumer and cooperative groups
that advances the consumer interest through research, advocacy, and
education. Consumer Reports is a mission-driven, independent, nonprofit
member organization that empowers and informs consumers, incentivizes
corporations to act responsibly, and helps policymakers prioritize the
rights and interests of consumers in order to shape a truly
[[Page 84074]]
consumer-driven marketplace. Earthjustice is a nonprofit public
interest environmental law organization advocating to advance clean
energy and combat climate change. National Consumer Law Center supports
consumer justice and economic security for low-income and other
disadvantaged people in the United States through its expertise in
policy analysis and advocacy, publications, litigation, expert witness
services, and training. National Resources Defense Council is an
international nonprofit environmental organization with expertise from
lawyers, scientists, and other environmental specialists. Northwest
Energy Efficiency Alliance is a collaboration of 140 utilities and
efficiency organizations working together to advance energy efficiency
in the Northwest on behalf of more than 13 million consumers. Pacific
Gas and Electric Company represents one of the largest combined gas and
electric utilities in the Western United States, serving over 16
million customers across northern and central California.\15\
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\15\ This document is available in the docket:
www.regulations.gov/comment/EERE-2017-BT-STD-0014-0531.
---------------------------------------------------------------------------
Finally, DOE notes that it had no role in requesting that the
parties to the Joint Agreement submit the Joint Agreement or in
negotiating the terms of the Joint Agreement. As noted in the Joint
Agreement itself, the parties negotiated and accepted the agreement
based on the totality of the agreement. DOE's participation was limited
to evaluating the joint submission under the criteria set forth in 42
U.S.C. 6295(p).
Therefore, DOE reaffirms its determination that the Joint Agreement
was submitted by interested persons that are fairly representative of
relevant points of view.
G. Responses to Previous Stakeholder Comments
The AGs of FL et al. commented that there were many comments made
by AHAM, Whirlpool, and GE Appliances in previous rounds of the
rulemaking that the AGs of FL et al. found were not adequately
addressed in the March 2024 Direct Final Rule. For example, the AGs of
FL et al. stated that the March 2024 Direct Final Rule does not address
Whirlpool's concern that DOE did not conduct a North American
integrated supply-chain analysis. The AGs of FL et al. commented that
the March 2024 Direct Final Rule neglects to address AHAM's previous
concern that RCWs will not be able to maintain certain features and
functionalities and households at or near the poverty line would be
negatively affected by having to purchase new RCWs. The AGs of FL et
al. commented that although AHAM later authored a joint agreement in
favor of the March 2024 Direct Final Rule, DOE did not adequately
address the concerns listed in AHAM's earlier comment and therefore
does not assuage concerns that the new energy efficiency standards will
raise prices for RCWs with disproportionate harm to low-income
households. (AGs of FL et al., No. 526 at pp. 2-4)
Regarding the comments from the AGs of FL et al. that DOE did not
respond in the March 2024 Direct Final Rule to the comments submitted
by signatories to the Joint Agreement and other stakeholders in
response to the March 2023 NOPR, DOE notes that the commenters
misunderstand DOE's direct final rule authority under EPCA. As
discussed in the March 2024 Direct Final Rule, DOE was already
conducting a rulemaking to consider amending the standards for RCWs
when the Joint Agreement was submitted. 89 FR 19026, 19036. After
receiving the Joint Agreement, DOE initiated a separate rulemaking
action and subsequently issued the March 2024 Direct Final Rule after
determining that the recommendations contained in the Joint Agreement
were compliant with 42 U.S.C. 6295(o). Id. The March 2024 Direct Final
Rule is a separate rulemaking, conducted under a different statutory
authority from DOE's prior rulemaking in the March 2023 NOPR, and DOE
has no obligation to consider comments submitted in response to that
prior rulemaking in a different rulemaking. Further, both the
efficiency levels and compliance periods proposed in the March 2023
NOPR are different from those adopted in the March 2024 Direct Final
Rule.
Even though DOE was not required to consider comments from the
March 2023 NOPR, DOE did in fact consider relevant comments, data, and
information obtained through the March 2023 NOPR. This included the
issues that the AGs of FL et al. asserted DOE ignored in the March 2024
Direct Final Rule.
In response to concerns about manufacturer supply chain, DOE noted
in the March 2024 Direct Final Rule that six of the nine OEMs with top-
loading standard-size products offer models that meet the adopted
standard level, while for the front-loading standard size RCWs,
approximately 92 percent of shipments already meet the adopted standard
level. 89 FR 19026, 19093. Given that a significant portion of the
market already meets or exceeds the adopted standard, it is very
unlikely that the adopted standard will impact the RCW product supply
chain.
Additionally, in the March 2024 Direct Final Rule, DOE specifically
addressed the ability of RCWs to maintain certain features and
functionalities. 89 FR 19026, 19100. For example, DOE determined that
the adopted standards would not require substantive reduction in hot
water temperature on the hottest temperature selection in the Normal
cycle. The adopted standards would not preclude the ability to provide
wash temperatures above 85 degrees Fahrenheit, would not preclude the
ability to provide total cleaning scores for top-loading units equally
as high as the highest scores currently achieved by units at lower
efficiency levels, and would not preclude the ability to provide
mechanical action score comparable to cores for units at lower
efficiency levels, Id. at 89 FR 19102-19103.
AHAM commented that DOE satisfactorily responded to AHAM's comments
and concerns regarding clothes washer performance and safety concerns,
baseline level definition, product class definitions, the economic
value of water, consideration of low-income consumers, consideration of
well and septic system users, test cloth availability, and
harmonization of compliance dates for other laundry products. AHAM
stated that the compliance timeline reduces the cumulative regulatory
burden of this rulemaking and those for other major appliances. AHAM
further commented that the energy conservation standards adopted in the
March 2024 Direct Final Rule maintain important consumer features and
utilities. AHAM commented that it agrees with DOE that the standard
levels in the March 2024 Direct Final Rule can maintain good cleaning
performance and do not preclude the ability to provide high wash
temperatures. (AHAM, No. 525 at pp. 3-8)
ASAP et al. also commented that DOE's testing found that the
standards finalized in the March 2024 Direct Final Rule can be achieved
with wash temperatures and ``wear and tear'' scores comparable to or
better than those of lower-efficiency units. (ASAP et al., No. 527 at
p. 3)
In the March 2024 Direct Final Rule, DOE considered the impact on
low-income households by performing a LCC subgroup analysis for low-
income households. 89 FR 19026, 19067-19071. Notably, consistent with
the Joint Agreement, in the March 2024 Direct Final Rule DOE adopted a
lower standard level for top-loading and front-loading standard-size
RCWs than the
[[Page 84075]]
level proposed in the March 2023 NOPR. DOE estimated that the adopted
standard level would result in 12 percent of low-income households
experiencing a net cost due to the standard, compared with 14 percent
at the proposed level in the March 2023 NOPR.
H. Formal Rulemaking
The AGs of FL et al. recommended that before enacting these
stringent new standards for RCWs, DOE return to formal rulemaking or,
at a minimum, to proceed with informal notice-and-comment rulemaking to
allow States and other relevant parties to participate in rulemaking
processes that affect nearly every household appliance and also ensure
a minimal level of political accountability by giving visibility to
internal agency deliberations. The AGs of FL et al. further commented
that the lack of a formal process does not allow people the opportunity
to comment on rules that touch the lives of nearly all Americans. (AGs
of FL et al., No. 526 at pp. 1, 6-8) The AG of MT similarly recommended
DOE halt the rulemaking. (AG of MT, No. 529 at p. 7)
The AG of MT expressed concern about pretext and circumvention of
the Administrative Procedure Act (``APA''), regarding DOE's conduct in
this rulemaking and in recent litigations. (AG of MT, No. 529 at pp. 1-
2)
AHAM stated that interested parties have had ample opportunity to
comment through multiple stages of rulemaking. AHAM noted that, in
fact, the March 2024 Direct Final Rule process provided an extra 110
days for interested parties to review DOE's final rule and submit
comments--which met EPCA requirements. (AHAM, No. 525 at p. 5)
In response, DOE notes that Congress granted DOE the authority to
issue energy conservation standards as direct final rules subject to
certain conditions and procedural requirements. As discussed in the
March 2024 Direct Final Rule, DOE determined that the Joint Agreement
was submitted jointly by interested persons that are fairly
representative of relevant points of view and the adopted energy
conservation standards as recommended in the Joint Agreement would
result in significant energy savings and are technologically feasible
and economically justified as required under 42 U.S.C. 6295(o) and
provided supporting analysis. 89 FR 19026, 19037-19038.
Additionally, DOE notes it followed the procedures in 42 U.S.C.
6295(p)(4) to publish a direct final rule in the Federal Register
simultaneously with a NOPR proposing identical standards and allowed
110 days for public comment. See 89 FR 19026. Regarding the comment
about formal rulemaking, DOE has met all of its statutory requirements
under its direct rule authority, which does not require formal
rulemaking.\16\
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\16\ DOE notes that outside of its direct rulemaking authority,
DOE utilizes informal or legislative rulemaking (i.e., notice and
comment rulemaking under the Administrative Procedure Act, 5 U.S.C.
553) when it promulgates rules under EPCA, not formal rulemaking.
---------------------------------------------------------------------------
Finally, regarding the comments about the APA, EPCA mandates the
substance and process by which DOE establishes energy conservation
standards and develops direct final rules. While the APA provides DOE
direction in areas in which EPCA is silent, EPCA is a comprehensive
statutory mechanism for the development, implementation, and
enforcement of energy conservation standards.
I. Conforming Updates To Test Procedure Introductory Notes
The test procedures at appendices J and appendix J2 contain
introductory notes that specify the dates of applicability for each
test procedure. Among other details, these introductory notes currently
specify the following:
For RCWs, manufacturers must use the results of testing
under appendix J2 to determine compliance with the relevant standards
at 10 CFR 430.32(g)(4) as they appeared in January 1, 2022 edition of
10 CFR parts 200-499.
For RCWs, manufacturers must use the results of testing
under appendix J to determine compliance with any amended standards
provided in 10 CFR 430.32(g) that are published after January 1, 2022.
The March 2024 Direct Final Rule reorganized 10 CFR 430.32(g) by
renumbering the currently applicable standards at 10 CFR 430.32(g)(4)
to 430.32(g)(1) and adding the amended standards promulgated by the
March 2024 Direct Final Rule at 10 CFR 430.32(g)(2).
In this document, DOE updates the introductory notes to both
appendix J and appendix J2 to reference 10 CFR 430.32(g)(1) with regard
to the currently applicable standards for RCWs and 10 CFR 430.32(g)(2)
with regard to the amended standards promulgated by the March 2024
Direct Final Rule.
IV. Impact of Any Lessening of Competition
EPCA directs DOE to consider any lessening of competition that is
likely to result from new or amended standards. (42 U.S.C.
6295(p)(4)(A)(i) and (C)(i)(II); 42 U.S.C. 6295(o)(2)(B)(i)(V)) It also
directs the Attorney General of the United States (``Attorney
General'') to determine the impact, if any, of any lessening of
competition likely to result from a proposed standard and to transmit
such determination to the Secretary within 60 days of the publication
of a proposed rule, together with an analysis of the nature and extent
of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) To assist
the Attorney General in making this determination, DOE provided the
Department of Justice (``DOJ'') with copies of the March 2024 Direct
Final Rule, the corresponding NOPR, and the March 2024 Direct Final
Rule TSD for review. DOE has published DOJ's comments at the end of
this document.
In its letter responding to DOE, DOJ concluded that, based on its
review, the direct final rule standards for RCWs are unlikely to have a
significant adverse impact on competition.
V. Conclusion
In summary, based on the previous discussion, DOE has determined
that the comments received in response to the direct final rule for
amended energy conservation standards for RCWs do not provide a
reasonable basis for withdrawal of the direct final rule. As a result,
the energy conservation standards set forth in the direct final rule
became effective on July 15, 2024. Compliance with these standards is
required on and after March 1, 2028.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Intergovernmental relations, Reporting and recordkeeping requirements,
and Small businesses.
Signing Authority
This document of the Department of Energy was signed on October 10,
2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for
Energy Efficiency and Renewable Energy, pursuant to delegated authority
from the Secretary of Energy. That document with the original signature
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters
[[Page 84076]]
the legal effect of this document upon publication in the Federal
Register.
Signed in Washington, DC, on October 15, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE amends part 430 of
chapter II, subchapter D, of title 10 of the Code of Federal
Regulations, as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
1. The authority citation for part 430 continues to read as follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
0
2. Amend appendix J to subpart B of part 430 by revising the
introductory note to read as follows:
Appendix J to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Automatic and Semi-Automatic Clothes Washers
Note 1 to appendix J to subpart B of part 430: Manufacturers
must use the results of testing under appendix J2 to this subpart to
determine compliance with the residential clothes washer standards
provided at Sec. 430.32(g)(1) and the commercial clothes washer
standards provided at Sec. 431.156(b).
Manufacturers must use the results of testing under this
appendix to determine compliance with the residential clothes washer
standards provided at Sec. 430.32(g)(2) and for any amended
commercial clothes washer standards provided at Sec. 431.156 that
are published after January 1, 2022.
Any representations related to energy or water consumption of
residential or commercial clothes washers must be made in accordance
with the appropriate appendix that applies (i.e., this appendix or
appendix J2 to this subpart) when determining compliance with the
relevant standard. Manufacturers may also use this appendix to
certify compliance with the residential clothes washer standards
provided at Sec. 430.32(g)(2) or any amended standards for
commercial clothes washers prior to the applicable compliance date
for those standards.
* * * * *
0
3. Amend appendix J2 to subpart B of part 430 by revising the
introductory note to read as follows:
Appendix J2 to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Automatic and Semi-Automatic Clothes Washers
Note 1 to appendix J2 to subpart B of part 430: Manufacturers
must use the results of testing under this appendix to determine
compliance with the residential clothes washer standards provided at
Sec. 430.32(g)(1) and the commercial clothes washer standards
provided at Sec. 431.156(b).
Manufacturers must use the results of testing under Appendix J
to this subpart to determine compliance with the residential clothes
washer standards provided at Sec. 430.32(g)(2) and for any amended
commercial clothes washer standards provided at Sec. 431.156 that
are published after January 1, 2022.
Any representations related to energy or water consumption of
residential or commercial clothes washers must be made in accordance
with the appropriate appendix that applies (i.e., appendix J to this
subpart or this appendix) when determining compliance with the
relevant standard.
* * * * *
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix A
May 16, 2024
Ami Grace-Tardy
Assistant General Counsel for
Legislation, Regulation and Energy Efficiency
U.S. Department of Energy
Washington, DC 20585
[email protected]
Re: Residential Clothes Washers Energy Conservation Standards
DOE Docket No. EERE-2017-BT-STD-0014
Dear Assistant General Counsel Grace-Tardy:
I am responding to your March 18, 2024 letter seeking the views
of the Attorney General about the potential impact on competition of
proposed energy conservation standards for residential clothes
washers.
Your request was submitted under Section 325(o)(2)(B)(i)(V) of
the Energy Policy and Conservation Act, as amended (ECPA), 42 U.S.C.
6295(o)(2)(B)(i)(V), which requires the Attorney General to make a
determination of the impact of any lessening of competition that is
likely to result from the imposition of proposed energy conservation
standards. The Attorney General's responsibility for responding to
requests from other departments about the effect of a program on
competition has been delegated to the Assistant Attorney General for
the Antitrust Division in 28 CFR 0.40(g). The Assistant Attorney
General for the Antitrust Division has authorized me, as the Policy
Director for the Antitrust Division, to provide the Antitrust
Division's views regarding the potential impact on competition of
proposed energy conservation standards on his behalf.
In conducting its analysis, the Antitrust Division examines
whether a proposed standard may lessen competition, for example, by
substantially limiting consumer choice, by placing certain
manufacturers at an unjustified competitive disadvantage, or by
inducing avoidable inefficiencies in production or distribution of
particular products. A lessening of competition could result in
higher prices to manufacturers and consumers.
We have reviewed the proposed standards contained in the Notice
of proposed rulemaking (89 FR 18836), Direct Final Rule (89 FR
19026), and the related Technical Support Documents. We have also
reviewed public comments and information provided by industry
participants.
Based on this review, our conclusion is that the proposed energy
conservation standards for residential clothes washers are unlikely
to have a significant adverse impact on competition.
Sincerely,
/s/
David G.B. Lawrence,
Policy Director.
[FR Doc. 2024-24154 Filed 10-18-24; 8:45 am]
BILLING CODE 6450-01-P